State v. Kosuda-Bigazzi

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          STATE v. KOSUDA-BIGAZZI—CONCURRENCE

   McDONALD, J., concurring. I join the majority opin-
ion and agree that, for the purpose of the Lenarz hear-
ing; see State v. Lenarz, 301 Conn. 417, 22 A.3d 536
(2011), cert. denied, 565 U.S. 1156, 132 S. Ct. 1095, 181
L. Ed. 2d 977 (2012); the trial court’s determination that
the defendant, Linda Kosuda-Bigazzi, failed to establish
that the documents in exhibits A and C were protected
by the attorney-client privilege was not clearly errone-
ous. I write separately to emphasize the unique factual
circumstances of this case and that the trial court’s
determination was for a specific and limited purpose—
to determine whether the criminal charges against the
defendant should be dismissed. I do not read the major-
ity opinion as addressing whether the defendant could
reassert the attorney-client privilege if circumstances
change at trial and the state seeks to affirmatively use
this evidence against the defendant.
   With respect to part II A of the majority opinion, this
case presents a unique factual record that is unlikely to
reoccur. Specifically, the documents that the defendant
claims are privileged were located within three files,
exhibits A, B, and C, in a locked filing cabinet. During
the Lenarz hearing, the parties stipulated that all the
documents contained in exhibit B, a file labeled ‘‘CRIMI-
NAL DEFENSE ATTORNEY Oct 2017,’’ were covered
by the attorney-client privilege. The defendant contends
that the privilege also covers the other two files that
were seized by the police, exhibits A and C. The defen-
dant asserts, among other things, that the documents
contained in exhibit A, a file labeled ‘‘INCIDENT 2017,’’
are privileged because they are substantively identical
to some of the documents contained in exhibit B, which
the state stipulated are privileged. Because the defen-
dant did not establish that the documents in exhibit A
are ‘‘communications’’ or that she created them with
the intent to communicate them to an attorney for the
purpose of seeking legal advice, I agree with the major-
ity that the trial court’s conclusion that the defendant
failed to meet her burden of establishing that those
documents are privileged was not clearly erroneous.
This determination, however, is based on the record
solely as it was developed at the Lenarz hearing and
does not necessarily preclude the defendant from reas-
serting the privilege at trial if the state seeks to affirma-
tively use this evidence against the defendant. That
would present a different evidentiary issue. Cf. State v.
Casanova, 255 Conn. 581, 594, 767 A.2d 1189 (2001) (‘‘[the
law of the case] doctrine is inapplicable here because
the issue raised by the pretrial motion to dismiss was
different from the evidentiary issue subsequently pre-
sented to the trial court’’). The trial court’s privilege
determination was made in the context of determining
whether the charges against the defendant should be
dismissed in accordance with our decision in State v.
Lenarz, supra, 301 Conn. 425–26, not whether the docu-
ments would be admissible at trial.
  Accordingly, I concur in the majority opinion.

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